First off, some personal news – I am very happy to report that I will be taking up a lectureship at the University of Nottingham School of Law starting this September. It’s a truly excellent school, with some wonderful colleagues, and I do look forward to working there. Now, on to business:

As readers are aware, Ken has in the past argued for self-defense as an independent justification for (some) targeted killings. He has done so (and I am in full agreement with him on that point) because the justification offered by the Bush administration at the time, that it is engaged in some amorphous, global armed conflict with Al Qaeda and that it can kill combatants in that conflict, cannot justify the whole of the US targeted killings policy even if stretched to its utmost limit. In other words, even if we accept that there is such a thing as a global non-international armed conflict, the US has killed people, and thinks it needs to kill people, who have no connection whatsoever to that conflict. And there, says Ken, self-defense comes in.

Today, of course, Ken is not alone in so arguing – recently, at the last ASIL meeting, the legal adviser of the State Department, Prof. Harold Koh, has offered the same justification.

In a prior post, I argued that it is doubtful that self-defense can do all that Ken wants it to do. In particular, I argued that if the person being targeted has rights under human rights law, self-defense cannot preclude the wrongfulness of the killing. Rather, the killing would have to be justified within the human rights framework. If, on the other hand, human rights treaties did not apply, then there would be little need for self-defense.

Ken has responded to my critique by saying the following:

Meaning, Marko starts from two points – one is extraterritorial application of the ICCPR. I don’t buy that, the US doesn’t buy it – and I don’t think its position unprincipled or ungrounded. If one disagrees not just as to the view, but also as to whether it is a principled position or not, it seems hard to have traction in the rest of the discussion, with all admiration and respect to Marko. Marko’s second point (really the first) went to self-defense as being about the state whose sovereignty is being violated, not the terrorists. I truly think we – and the US – and Marko are on different, irreconcilable pages here; I can’t imagine the US thinking that the act of self-defense is anything other than aimed at the terrorists, and the violation of sovereignty of the local state is collateral to that. It is a violation of that state’s sovereignty, but territorial integrity is not everything, as Sofaer said in his 1989 speech and Koh essentially reiterated. But I think I must not understand Marko well, because I couldn’t understand how he meant self-defense.

Now I’d like to offer a rejoinder – in part because of a real disagreement between us, and in part to clarify what I think is, or may be, a misunderstanding, either linguistic or semantic, or perhaps legal and conceptual.

(Warning! long post — but hopefully not a boring one!)

Four basic scenarios

I’d first like to set out four basic factual scenarios, so that we could get a bit away from the heady heights of abstraction, and thus hopefully facilitate mutual understanding. First, for our present purposes, we need to get IHL out of the picture. In other words, we need to envisage the killing of a suspected terrorist that takes place outside any armed conflict. With that out of the way, the other important contextual element is where the killing takes place, i.e. whether the person being killed was located within or outside the territory of the state which is doing the killing. So:

(1) Imagine an Osama Bin Laden clone, who is equally nefarious, but who had nothing to do with 9/11 and is in no way affiliated with Al Qaeda. Let’s call him Mephistopheles. Old Mephisto has his own terrorist cabal somewhere in Pakistan, and plans an imminent attack on a US city, say with a dirty bomb or something equally horrific. Pakistan’s military is either unwilling or unable to prevent Mephisto from completing the attack, and therefore the US sends a drone which manages to take him out.

(2) For our second scenario, let’s take all of the facts from the first, but with one important difference: while in the first scenario Pakistan does not want to, or cannot prevent Mephisto from conducting his attack, in this scenario Pakistan gives its consent to the US to do its drone strike.

(3) In our third scenario, Mephisto has really outdone himself. Not only is he the mastermind of his own terrorist organization, but he actually operates from a volcanic rock in the middle of the Pacific, a terra nullius which no state claims as its own, and from ships which deliberately do not fly the flag of any state. The US military’s drones still find these ships to be easy targets, and Mephisto’s island base fares no better.

(4) In our fourth and final scenario, Mephisto is a Pakistani national, but he is actually living in the United States, where he has completed doctoral studies in nuclear physics, engineering, or what have you with flying colors, and has maybe even obtained US citizenship. He somehow manages to build a dirty bomb, and decides to put it in a car and drive it all the way to Times Square in New York City, where he intends to detonate it. Fortunately, the US military in Pakistan is informed by Pakistani security services of Mephisto’s plan, and the President authorizes a drone attack (or, perhaps slightly more plausibly, a mere sniper) to take out Mephisto while he’s driving on the New Jersey Turnpike.

All four scenarios involve targeted killings. The first scenario is one of extraterritorial killing, and the territorial state (Pakistan) has not consented to the use of force within its boundaries. The second scenario is also extraterritorial, but the territorial state has in fact consented. The third scenario is likewise extraterritorial, but the killing does not take place on the territory of any state. Finally, the fourth scenario is intraterritorial.

So, what does international law have to say about these scenarios of targeted killing, again all of which take place outside armed conflict?

Self-defense

To my mind, self-defense is relevant ONLY for the first scenario. But before I show what that is the case, I need to define what I exactly mean by self-defense – and this is perhaps where Ken and I might be misunderstanding each other.

Self-defense is a concept of the jus ad bellum, an exception to the prohibition on the use of inter-state force set out in Art. 2(4) of the UN Charter. It is a primary rule, arising from customary law and enshrined in Art. 51 of the Charter, in that it directly regulates when force can be used between states – in other words, the use of inter-state force is prohibited, except when it is in self-defense. It is also a secondary rule, in that it precludes the wrongfulness of any wrongful act merely incidental to the lawful use of force in self-defense, such as the violation of a state’s sovereignty and territorial integrity, and in that capacity it is enshrined in Art. 21 of the ILC Articles on State Responsibility. Because self-defense operates as an exception to the prohibition on the use of force, it logically operates only when that prohibition is itself engaged. (For a more detailed exposition, see here).

Now, self-defense is relevant only for our first scenario because:

– in scenario (2) Pakistan has consented to the use of force;

– in scenario (3) the US attack on Mephisto’s base and ships does not implicate the sovereignty of any other state – in other words, Art. 2(4) of the Charter is not engaged, since the killings took place on terra nullius and ships without nationality;

– in scenario (4) for the same reasons as in scenario (3), since the killing took place on US soil.

Even in scenario (1), many authors would question the applicability of self-defense, for example because Mephisto’s acts were not attributable to Pakistan, or because the purported self-defense was anticipatory in nature. These are I think serious issues, but they do not concern me here – I will postulate the applicability of self-defense.

Now, Ken states that “we – and the US – and Marko are on different, irreconcilable pages here; I can’t imagine the US thinking that the act of self-defense is anything other than aimed at the terrorists, and the violation of sovereignty of the local state is collateral to that.”

Let me say very clearly that I do not actually dispute that. The act of self-defense (a drone attack) is of course directed against the non-state actor. But the only reason why self-defense is needed is to preclude the wrongfulness of what would otherwise be an infringement of Pakistani sovereignty. This is what it does. It is the fact that the US would be using force in Pakistan without Pakistan’s consent that engages Art. 2(4), and self-defense is needed for the US to be able to say to Pakistan, look, it is necessary for us to attack this non-state actor, and this is not a violation of your sovereignty because you are unable or unwilling to prevent this non-state actor from attacking us, and our narrow and confined response is a proportionate one.

Conversely, if Pakistan actually consents, as in our scenario (2), then self-defense becomes perfectly irrelevant so long as the US acts within the boundaries of Pakistani consent. Art. 2(4) is not engaged, and Pakistani sovereignty is not being violated even presumptively.

Finally, in scenarios (3) and (4) the US does not need self-defense because its use of force is simply not prohibited in the first place. There is no rule of international law which in principle prevents states from using force against individuals or non-state actors in areas outside the sovereignty of other states.

Self-defense and the preclusion of wrongfulness

Now, maybe Ken is thinking about some different concept of self-defense than I am. I at least don’t think that any other such concept exists in international law, but I am of course open to contrary argument. However, such an argument would need to explain how self-defense is relevant in situations where the sovereignty of third states is NOT implicated.

If it IS implicated, or if we are in our scenario (1) where it is postulated that it applies, then the issue is what is self-defense as a secondary rule, a circumstance precluding wrongfulness, actually capable of precluding. I have explained in my earlier post why, if human rights law applies, self-defense is as such incapable of precluding the wrongfulness of any violation, just as it is incapable of precluding the wrongfulness of violations of IHL.

This is exactly what Prof. Alston says in his report (paras. 42-44), concluding that:

In sum, even if the use of inter-state force is offered as justification for a targeted killing, it does not dispose of the further question of whether the killing of the particular targeted individual or individuals is lawful. The legality of a specific killing depends on whether it meets the requirements of IHL and human rights law (in the context of armed conflict) or human rights law alone (in all other contexts).

Likewise, even in scenario (2), where Pakistan, the territorial state, consents to the use of force, thereby obviating any need for reliance on self-defense, that consent cannot preclude the wrongfulness of violations of IHL and IHRL (if applicable). As Alston puts it (para. 37):

The proposition that a State may consent to the use of force on its territory by another State is not legally controversial. But while consent may permit the use of force, it does not absolve either of the concerned States from their obligations to abide by human rights law and IHL with respect to the use of lethal force against a specific person. The consenting State’s responsibility to protect those on its territory from arbitrary deprivation of the right to life applies at all times. A consenting State may only lawfully authorize a killing by the targeting State to the extent that the killing is carried out in accordance with applicable IHL or human rights law.

Note, finally, that even though an invocation of self-defense is unnecessary in scenarios (2)-(4), it would in fact be necessary in scenario (1) even if the person killed was undoubtedly a combatant in an armed conflict. A killing may be perfectly lawful as a matter of the jus in bello, but still be unlawful as a matter of the jus ad bellum. Assuming, for example, that Osama Bin Laden is a combatant in such a conflict, and that he is found somewhere in Germany, the United States could not just immediately send a drone to kill him – it would at the very least need to show that Germany was unable or unwilling to do the killing (or the capture) itself.

These conclusions are not, I think, particularly controversial. I’d even go so far to say that they are black letter law. The whole point of the separation of the jus ad bellum from the jus in bello is precisely that lawfulness under the former cannot affect lawfulness under the latter. And, in my view, and in that of the ILC as well as Prof. Alston, that same reasoning extends to human rights law, if applicable.

Extraterritorial application of human rights treaties

This is why both the Bush and the Obama administrations cannot just say that self-defense precludes the wrongfulness of any human rights violation. Rather, they have to argue that human rights treaties do not apply at all – in other words, that the individual killing is as such not prohibited – and this is in fact what they have done. In our scenarios (1)-(3), this lack of application would be due to the fact that the killing is extraterritorial (while in scenario (4) such reasoning of course could not apply); in the absence of human rights, because in (1) self-defense applies, in (2) we have consent, and in (3) we need neither, the targeting killing would be lawful, as it would not be prohibited by any applicable norm of international law.

This is precisely what Ken does when he says that “I don’t buy that [the extraterritorial application of HR treaties], the US doesn’t buy it – and I don’t think its position unprincipled or ungrounded. If one disagrees not just as to the view, but also as to whether it is a principled position or not, it seems hard to have traction in the rest of the discussion.”

Let me make two points. First, substantively, the argument of my previous post was precisely that self-defense was not enough IF human rights law applies – that the US (and Ken) need to do more if it does. One thing to do, of course, is to deny extraterritorial applicability and be done with that. But if that argument turns out to be wrong, then self-defense just doesn’t cut it. Perhaps Ken and I don’t even disagree on this point, and scenario (4) would of course be a good place to test that.

Second, I of course did not mean to suggest that those who argue that human rights treaties do not apply extraterritorially are themselves unprincipled. Far from it – and apologies if I have given the wrong impression. But, but, I still maintain that there is no reason of principle to deny that human rights treaties apply altogether.

By ‘principle’ I simply mean a normative justification as to why one category of human beings, those within the state’s territory, are entitled to be protected from the arbitrary exercise of the state’s power, while those outside the state’s territory are not so entitled. If, as all human rights treaties explicitly say, their normative basis is in universality, in the idea that ALL human beings are by virtue of their humanity entitled to some minimum of rights and worthy of protection, no matter how otherwise bad or evil, then I don’t see a principled justification for a wholesale denial of rights.

Having said so, I don’t mean to deny (1) that the US has a good, even better, purely textual argument that the ICCPR should not apply extraterritorially; (2) that this has been a consistent, long-standing position of the US government; and (3) that even under ECHR case law, most notably Bankovic, drone attacks in a territory outside a state’s control (eg. US in Pakistan) would not be covered by the ECHR.

Nonetheless, those in the US who argue against the ICCPR’s extraterritorial application should likewise realize that (1) text is as such not absolutely paramount, as it must be tempered with object and purpose; (2) that the text is more ambiguous than they make it seem (even the US Supreme Court has frequently read an ‘and’ to mean an ‘or’ in other contexts), and so is the drafting history; (3) and that though the US position is consistent, it may well be that it is consistently wrong.

As for Bankovic and the ECHR, I can only say that this unfortunate case has been steadily eroded – but we’ll see how far the European Court itself will go in Al-Skeini in a matter of months. I would just like to note that the issue of extraterritorial application is not relevant only to these ‘big’ cases of drones and wars on terror or what have you. For example, currently pending before the Court is the application filed against Russia by the family of Alexander Litvinenko, famously assassinated in London through poisoning by radioactive sushi, supposedly by a KGB agent or with the KGB’s collusion.

In short, of those who argue that there is a principled reason – rather than one of political expediency – to deny the extraterritorial application of human rights treaties, I would ask the following two questions:

(1) Why is it okay for a government to kill, or be complicit in the killing, of one of its political opponents, merely because the killing took place in London rather than Moscow? Note that, the application of IHL aside, to my mind nothing legally or morally distinguishes killing by drone-fired missile from killing by polonium-laced sushi.

(2) Would Auschwitz count as a human rights violation? Yes, that’s my question, absolutely bizarre though it may seem. Imagine if somehow the Third Reich was a party to the ICCPR. Would it really not have been a violation of this treaty to set up the death camp, just because it might be located in occupied Poland, rather than in Germany proper? And is this really a result that its drafters would have found acceptable, legally or morally?

Targeted killing within a human rights framework

Thus, in order to justify the practice of targeted killing, the US and other states engaging in the practice would be well advised not to put all their eggs in one basket, that of denying the extraterritorial application of human rights, but to articulate an argument within a human rights framework, even if it is only in the alternative. This, of course, is something that the Israeli Supreme Court has already done in its Targeted Killings judgment.

Within that framework, as within IHL, self-defense is as such perfectly irrelevant. It is an ad bellum consideration which has no place in IHL analysis, and if it should have a place within a human rights analysis (I make no judgment on this point), that would be become the human rights framework itself would mandate this result (thus, for example, one could argue that killings done during a use of force that is unlawful under the jus ad bellum could never be justified under human rights law).

The reason why states are reluctant to articulate such arguments is simple. They are afraid that human rights law is too rigid and inflexible, and that it would render a policy of targeted killings almost invariably unlawful. I personally don’t think that this is the case. States can, and they do, lawfully take lives under human rights law if they show the necessity for doing so. In that regard, I am somewhat concerned with some of Alston’s finding in his report, such as that (para. 85):

Outside the context of armed conflict, the use of drones for targeted killing is almost never likely to be legal. A targeted drone killing in a State’s own territory, over which the State has control, would be very unlikely to meet human rights law limitations on the use of lethal force.

This, I think, greatly overstates the case against drones. Coming back to our scenario (4), a drone may well be an appropriate way to perform a killing. Whether it is or it isn’t depends on concrete facts which by their nature cannot be taken into account in the abstract. Likewise, Alston remarks that (para. 86):

Outside its own territory (or in territory over which it lacked control) and where the
situation on the ground did not rise to the level of armed conflict in which IHL would apply, a State could theoretically seek to justify the use of drones by invoking the right to anticipatory self-defence against a non-state actor. It could also theoretically claim that human rights law’s requirement of first employing less-than-lethal means would not be possible if the State has no means of capturing or causing the other State to capture the target. As a practical matter, there are very few situations outside the context of active hostilities in which the test for anticipatory self-defence – necessity that is “instant, overwhelming, and leaving no choice of means, and no moment of deliberation” – would be met. This hypothetical presents the same danger as the “ticking-time bomb” scenario does in the context of the use of torture and coercion during interrogations: a thought experiment that posits a rare emergency exception to an absolute prohibition can effectively institutionalize that exception. Applying such a scenario to targeted killings threatens to eviscerate the human rights law prohibition against the arbitrary deprivation of life. In addition, drone killing of anyone other than the target (family members or others in the vicinity, for example) would be an arbitrary deprivation of life under human rights law and could result in State responsibility and individual criminal liability.

Alston is justifiably concerned with the integrity of the human rights regime, which might be compromised by carving out exceptions from the right to life, and even by injecting IHL into it. But, at the same time, his concern leads to a lack of flexibility that may in turn simply lead states to think that the application of the human rights regime to such situations would be hopelessly utopian.

In other words, for the extraterritorial application of human rights treaties to become a practical reality, rather than empty words on paper, a price must be paid, and that price may involve watering down human rights in order to be able to give full regard to extraordinary circumstances – but human rights must not be watered down too much. Thus, for example, I find Alston’s position that the killing in a drone attack of any bystander would necessarily be arbitrary to be far too rigid.

Without concrete facts and cases, it is impossible to devise a balance in the abstract between these two competing considerations of flexibility and regime integrity. But that balance can be struck. To my mind, at least, it would be perfectly justifiable within a purely human rights framework for the US to kill Osama Bin Laden by a drone, so long as it could show that capture was entertained, but that it was wholly impracticable. The same human rights principles that apply, for instance, to the killing of a hostage-taker or a prison fugitive or during a riot can also be effectively applied here, again, so long as due regard is given to the exceptional circumstances. A mere invocation of self-defense, however, would simply not suffice.

17 Responses

To follow up on your Osama bin Laden in Germany scenario my question would be what recourse does Germany have in that scenario?

It would seem they either grant permission to the US to conduct their targeted killing – and run the risk of Al Qaeda extending its fatwa to include the killing of Germans – or seek to arrest OBL and surrender him to US authorities in accordance with UN Security Council Resolutions 1267 and 1333.

How would Germany have any justification to kill OBL? And how would they have any legal recourse to detain OBL as a prisoner of war (though certainly not with POW status) instead of arresting him as a criminal under indictment in US Federal Court?

(1) Germany can certainly refuse to give the US its consent. If Germany is willing and able to prevent OBL from conducting further attacks, the US would not have the right to just send a drone and kill him. If it nonetheless did so, it would be violating German sovereignty, but would not necessarily be violating IHL or OBL’s human rights.

(2) Germany could be justified killing OBL in the same way as any other state in my scenario (4) above, within the human rights framework. This would require a showing that OBL’s capture was difficult or impossible.

(3) Germany could certainly detain OBL under a criminal charge, or pending extradition to the US. Unless it were itself in an armed conflict, it could not detain OBL as a POW. Art. 5 ECHR prohibits preventive detention, however states can derogate from that provision in times of emergency.

thank you for your very interesting and thought-provoking post. I also add my public congratulations for your new job to those I already gave you in private.

I agree with you that self-defence under Article 51 UNC / 21 ARSIWA is only relevant when the sovereignty of another state is in question, although (as you very well know) I am not convinced by your reading of Article 2(4) as only applying between states (but let’s not go there now).

However, what Ken and others may be pointing to, in my opinion, may be something quite different from this concept of self-defence. I take no position as to whether such other concept actually exists under international law under the label ‘self-defence’. My inkling is that you are right it doesn’t, but there are some problems that I think arise from a terminological transposition of domestic law concepts. But let’s for a moment call this ‘something’ with another name. Let’s pretend all those who have argued about self-defence in this context were actually talking about *necessity* as a circumstance precluding wrongfulness.

According to Article 25 ARSIWA:

“1. Necessity may not be invoked by a State as a ground for precluding the wrongfulness of an act not in conformity with an international obligation of that State unless the act:
(a) is the only way for the State to safeguard an essential interest against a grave and imminent peril;
and
(b) does not seriously impair an essential interest of the State or States towards which the obligation exists, or of the international community as a whole.

2. In any case, necessity may not be invoked by a State as a ground for precluding wrongfulness if:
(a) the international obligation in question excludes the possibility of invoking necessity; or
(b) the State has contributed to the situation of necessity.”

How would this change your analysis? Could you imagine Article 25 being applied to your scenario 1? And would it be relevant to your other scenarios? IMHO, if human rights law does apply extraterritorially, Article 25 may also be relevant under your terra nullius scenario n. 3, because the obligation not to violate human rights would still be in place regardless of sovereignty questions (those that I would call questions of extraterritorial executive jurisdiction, and you would not, but again let’s not go there now).

I am aware that Article 25 is quite restrictive – but perhaps it is exactly the type of test we are looking for?

Finally, on your normative question: I do not think that I agree with your critique of Prof. Alston’s view. Are you really suggesting it could be consistent with human rights law to deliberately take the life of someone outside of an armed conflict context without even the due process that the death penalty requires?(*) You mention the use of lethal force by the police to avert some imminent danger. But unless you are talking of something occurring as an unwanted consequence of the use of force by the police, surely you end up in a ticking bomb scenario type of situation: would it be ok to kill Mephisto in scenario 4, if the circumstances were extraordinary enough? Really? And why would it be ok to kill him and not torture him?

F.

(*) I am very strongly against the death penalty, and I find it difficult to utter the words ‘due process of law’ and ‘death penalty’ one near the other, but the point I am making should hopefully be clear.

PS: On your choice of character: wagering your soul to Mephistopheles in exchange for absolute knowledge… that’s something I could see you doing, Mr Faustus-Milanovic!

I’d like to agree with this analysis, but I’m not at all sure that I do.

It may well be, as you suggest, that “self defence” is being deployed in two slightly different directions at once in putative justifications of this sort, but I wonder if both aren’t at least potentially acceptable.

1) Your argument seems to be that self defence is only ever relevant in inter-state conflicts. Certainly, self defence is a customary and treaty-based exception to the use of force against another state; does this necessarily mean, however, that its potential content – in customary law in particular – is exhausted by that role? In particular, as the number of entities with legal personality, enjoying rights and responsibilities under international law, expanded during the 20th century, is it not plausible that we also saw an expansion in the number of actors to whom the international law of self defence is applicable?

2) Of course, there is no explicit “self-defence” exception in the ICCPR. However, to conclude on this basis alone that self-defence is not relevant to targeted killings where no violation of sovereignty exists moves too quickly. In circumstances in which a valid argument from self-defence can be made – with all that implies in terms of necessity and proportionality – a court would not have to work particularly hard in order to find that the attendant deprivation of life had not been “arbitrary” for the purposes of Article 6. I would also venture that the legality of such action in cases of genuine self-defence (that is, against an imminent threat to the life or vital interests of the state) would be the default position of just about every state in the world. I think most – if not all – states would agree that there is in effect a self-defence defence to Article 6 ICCPR implied in the word “arbitrary”.

There are several distinct questions that are being confused here. One is self-defense as an Article 51 exception to the use of military force across borders (a state-to-state issue) gets mixed up with the question of when the use of military force permitted under IHL? This independent dimension becomes clear in asking the completely domestic question of when posse comitatus permits the use of lethal military force on US soil.

Accept the principle that there is no active armed conflict at this moment. Now expand the domestic use scenario. Relabel current 4 (driving down the NJ Turnpike with a dirty bomb) as 4a. Now in 4b, Mephisto is part of a Mumbai style attack on a US city on the East Coast. Then 4c directs the attack against a military facility like the sub base in New London, CT. Finally, 4d puts Mephisto and his fellow attackers in military uniforms transforming the attack into a (small?) military invasion although we might distinguish whether it occurs under the “flag” of a non-state or foreign state party.

In 4a not only do international human rights apply, but also Constitutional rights. The use of lethal force may be permitted because of the threat to others, but it would probably be a police sniper and not military force. In 4d, however, an invasion essentially creates an armed conflict where non previously existed, and the use of military force is authorized (there are no human rights considerations shooting down enemy planes during Pearl Harbor). The fact that the attack is on US soil is irrelevant, the Constitution does not protect an invading force.

Drones are not distinguishable from other military weapons systems. Targeting killing is not only permitted, but is required by the IHL rule for discrimination (between combatants and civilians) when the enemy violates the laws of war and wears no uniforms to permit anonymous discrimination from a distance. Terrorism is not a meaningful trigger because Oklahoma City was not a military matter while the attack on a sub base is not terrorism but allows military force.

Whatever the rule is, it involves a number of issues and a much more complicated chain of reasoning. For example, I suggest that in any situation where military force is used against a valid target under IHL, human rights and the Constitution do not apply. This is not limited to a pre-existing armed conflict but extends also to the short term application of military force short of triggering an armed conflict under Article 51 and to situations where we are on the defending side of an enemy attack that will eventually trigger an armed conflict or will be regarded as an isolated incident short of armed conflict (USS Pueblo).

In this context, “IHL” means that the rules of IHL apply to determine the lawfulness of the targeting, not that the outcome of IHL is to determine that the target is entitled to some particular type of protection as a POW or civilian. The isolated civilian terrorist unrelated to any existing armed conflict never meets this threshold whether he is in Pakistan, on a rock in the Pacific, in Germany, or in the US. An enemy armed force attacking New London (as Benedict Arnold did in command of a British military force) meets this criteria whether it is associated with a state or a non-state entity whether under an existing armed conflict or in a time of apparent peace, and I would suggest that it doesn’t matter if they are in uniform (Pearl Harbor) or out of uniform (Mumbai).

Your 1-4 scenario tries to arrive at a conclusion by excluding IHL and an armed conflict, varying the level of constraint on cross border violations, and then trying to draw from that some conclusion about the application of human rights law. This is a mismatch because the justification for extending one country’s governmental power into a neighboring country has nothing directly to do with human rights. Eichmann received a proper trial under human rights rules without regard to the question of his kidnapping (or “informal rendition” if you prefer) from Argentina is an example of the projection of criminal justice police power (instead of military force) across borders in violation of national sovereignty.

The alternate view is that the proper application of military force against a target legal under IHL negates human rights law no matter where it is applied (domestically, in a foreign country, or in international waters), when it is applied (during war or before a war starts), without regard to national self defense (that is while Article 51 may distinguish the lawful application of military force from an act of aggression, but even during a clear act of aggression international human rights law does not apply to combat with the uniformed armed forces of the country being attacked, while Article 51 self defense justification for the incursion does not allow the military to execute a civilian without trial).

Thanks for the comments – and let me disclaim any desire for a Faustian bargain! Those tend not to end well.

As for necessity as a circumstance precluding wrongfulness, I am not sure that it is relevant as such, nor that Ken or the governments pursuing a policy of targeted killings are relying on it. Of course, considerations of necessity are built into the fabric of many primary rules, such as the jus ad bellum self-defense, or into IHL, or into human rights law. Because these rules tend to strike a balance between necessity and other interests, they tend to exclude the possibility of invoking necessity as a more general, secondary rule circumstance precluding wrongfulness. This is, e.g., what the ILC says with respect to IHL in its commentary on Art. 25, and the same reasoning could apply to human rights law as well.

But, more importantly, it is human rights law which itself sets out a test of necessity for deliberate deprivations of life by a state. There is no need to look elsewhere to find it. In that regard, I agree that states can kill only with due process, but the question is precisely what process is due. It is most emphatically NOT true that states can only lawfully kill when they use the death penalty; they certainly don’t need a ticking bomb scenario to do it.

This is what the treaties themselves say. Thus, for instance Art. 6 ICCPR prohibits only ‘arbitrary’ deprivations of life, while Art. 2 ECHR permits deprivations of life when they are ‘absolutely necessary’ to protect another person from unlawful violence, to effect an arrest or prevent an escape of a person lawfully arrested, or to quell a riot or an insurrection. So long as it can be shown that the killing was ‘absolutely necessary’ – most importantly, that capture or non-lethal means of disabling the individual were impossible, and that the operation was properly planned (e.g. McCann v. UK), the killing would be lawful.

To take a current example of the Cumbria shootings of 12 people by a lone gunman, the UK police would have been perfectly within their rights to shoot the gunman if capture was impossible. Indeed, they SHOULD and WOULD have done so, if they could have. Similarly, there would be nothing unlawful in killing a person as dangerous as Osama Bin Laden, so long as capture and arrest could not be effected. This is simply what human rights law explicitly allows, and again, we don’t need ticking bombs to do it.

As for torture, we, as well as the drafters of the human rights instruments, have a different attitude toward the prohibition of torture than to the right to life. The former is absolute, the latter is not. This is again what the treaties themselves say, and the reason behind such an approach is a moral or value judgment that killings can sometimes be justified, while torture cannot.

On your point (1), it may well be that the prohibition on the use of force now extends to entities other than states. Historically that was not the case, and I don’t think that is the case today, but I am willing to be persuaded otherwise with sufficient evidence. My point is that the jus ad bellum notion of self-defense applies only when the jus ad bellum prohibition on the use of force applies beforehand, simply because it is an exception to that prohibition.

On your point (2), I agree that whether a state acts in self-defense or not as a matter of the jus ad bellum may be relevant for the assessment of whether a killing was ‘arbitrary’ within the meaning of Art 6 ICCPR, or ‘absolutely necessary’ within the meaning of Art 2 ECHR. Indeed, that’s what I tried to say in the first two paragraphs after my ‘targeted killings within a human rights framework’ heading. My only point there is that the targeted killing has to be justified WITHIN that human rights framework.

Ultimately, the issue is whether the killing was ‘arbitrary’ or ‘absolutely necessary’, and human rights law may well take into account what other branches of the law have to say, whether IHL or the perhaps even the jus ad bellum. But it would still be a HUMAN RIGHTS argument and analysis, and possible justification of a targeted killing, something that states employing such a policy would be wise to offer. It wouldn’t be an independent self-defense justification external to human rights law.

of course certain tests are already embedded in the rule – this is true of many rules of international law, not just human rights ones. But one could argue that those tests are part of the primary rules and define the boundaries of the rule, and are thus structurally different from the secondary rules on circumstances that preclude wrongfulness when the rule has been violated…

The point may be too thin, but it is worth trying to explain it to see if it holds. So, you have Art. 6 ICCPR which prohibits only ‘arbitrary’ deprivations of life, and Art. 2 ECHR which permits deprivations of life when they are ‘absolutely necessary’ for the reasons enumerated. Very well. In both cases, these ‘inbuilt’ tests will lead you to saying that a state has breached its obligation if it does not meet them. So far, so good.

The further question, to which I really have no answer, is whether Article 25 ARSIWA can be employed AFTER you have applied the relevant tests and concluded there has been a (prima facie) violation. In other words, if it provides ANOTHER, *ultima ratio* test of necessity.

Let me put this another way. Articles 6 ICCPR and 2 ECHR define the boundaries of the right to life under the respective treaties. These are the obligations, and the ‘arbitrariness’ and ‘absolute necessity’ tests answer the question “Has state x violated Article 6 ICCPR?”. They are PRIMARY RULES. Article 25 ARSIWA, on the other hand, does something different. It is a SECONDARY rule saying that, in the very exceptional circumstances referred to therein, what would otherwise be a breach of Article 6 ICCPR or 2 ECHR is not so.

Now I am perfectly aware that this all ultimately rests upon the application of Article 55 ARSIWA on Lex Specialis: you will probably argue that International Human Rights Law is the start and the end of the matter because it provides for these circumstances precluding wrongfulness already (as you say, the test is in-built); others might argue otherwise. I am never very convinced by ‘monadic arguments’ on the completeness of international human rights law when it comes to international responsibility, but I can obviously be proved wrong!

Finally, you are right that the right not to be tortured is more absolute than the right to life, and that there is (some) ratio to this. What still baffles me is the idea that in the XXI century the *only* available option to incapacitate someone might have to be killing them rather than capturing them in the type of scenario described. Surely it is a question of how much effort (and money!) you put into trying to incapacitate someone without killing them? There must be some alternative to going back to the middle ages and ‘extra-judicial’ methods which are more apt to the Sicilian mafia than to a state. But that’s not for us to decide.

My view remains that, given that it is now accepted that individuals are capable of attacking the state, most states would assume that their right of self-defence overrides the human rights of the individual in question; but, as you note, this should be read into the rights themselves. I would not think, for example, that self-defence could found a defence to torture. Your dispute, as I understand it, is that this is an improper deployment of the doctrine of self-defence. I see the point, but I’m not sure how important it is.

Specifically, it seems clear that where a state can genuinely demonstrate that the extrajudicial execution of an individual is a necessary and proportionate response to an imminent attack (the test for self defence) it will also eo ipso have passed the “non-arbitrary” muster of Art. 6 ICCPR (although of course the latter is not exhausted by the former; indeed, I suspect it is in many ways more permissive). Therefore, even if your doctrinal arguments are accepted, those who seek to argue that self defence can justify these kinds of killings will not in practice need to make any further arguments in order for their actions to be legal under international human rights law. In this regard, the use of the term self-defence is at worst a close analogue and a convenient shorthand.

Is a hypothesis conceivable of a situation in which the test for self defence would – were it applicable – be met, but the killing would be found to be arbitrary under Art. 6 ICCPR?

Yes, we are in perfect agreement on the primary v. secondary rule point – though that distinction can tend to collapse, as the example of self-defense itself show. My short answer to you is ‘no’ – if a killing is ‘arbitrary’ for the purposes of Art. 6 ICCPR, or is not ‘necessary’ for the purposes of Art. 2 ECHR, then the secondary rule of necessity would NOT be able to preclude the wrongfulness of these violations, just like it wouldn’t be able to do that with regard to (most) violations of IHL.

As for effort and money, I agree – this is the crux of the matter in assessing whether capture of a dangerous person is a feasible option. How should we e.g. value the lives of the police officers themselves, which might be put at risk in any capture action? There is no simple answer to this question, because it involves weighing interests which are themselves hardly commensurable. But it is the same ‘equation’ that we are doing in a domestic, law enforcement context, and that same ‘equation,’ if a bit tweaked or adjusted, could apply in an extraordinary and extraterritorial context. I concede that it is difficult and under-determined, but I so no other viable alternative.

Euan,

Your point is well taken. I would respond by saying that the evaluation of the lawfulness of jus ad bellum self-defense is usually taken at a much higher degree of abstraction. I am not aware of any actual case or example where the question asked in the jus ad bellum necessity/proportionality analysis is whether the individual being targeted could be captured or incapacitated, rather than killed, which is the principal question that human rights law would ask.

Likewise, if you take my scenario (2) as your starting point, and Pakistan were to give its full consent to the US to do all that it wanted to do on Pakistani soil, thereby taking the jus ad bellum considerations out of the picture, we would still need to venture into human rights analysis to see whether the killing of a particular individual was lawful or not.

[…] I can imagine no better discussion on the self-defense rationale for drone strikes than that presented by Marko Milanovic at the EJIL blog. (At Opinio Juris, Kenneth Anderson promises a response, which will most […]

One should not let Ken beg the question or drive you in false dilemma’s. For instance there are other scenario’s possible:

(1) The drone attack is based on false information. Take for instance the Israeli killings of the Moroccan waiter Ahmed Bouchiki in Lillehammer, mistakenly taking him for Ali Hassan Salameh. Or the so numerous Guantanamo inmates that were sold by others as Al Qaeda just to make a buck.
(2) The killed person is not a terrorist but a brilliant intellectual that discloses unwanted information to the press. Like the regular bombing of Al-Jazeera offices all over the world.
(3) The killed person is not a terrorist but an Iraqi resistance fighter. Since the Iraq invasion was not an act of self-defence it is the resistance fighter the one that acts in self-defence.
(4) It was not a targeted killing but just the bombing of a wedding party killing tens of civilians and no terrorist whatsoever.

The number of possibilities is unending, therefore thinking only about the four would make the argument a false dilemma. And assuming that the US acts in self-defence is begging the question. It is only an international court that may decide that it is really self-defence and not the US itself, because no one should be the judge in her own case. Nuremberg judges made it clear: “It was further argued that Germany alone could decide, in accordance with the reservations made by many of the Signatory Powers at the time of the conclusion of the Briand-Kellogg Pact, whether preventive action was a necessity, and that in making her decision final judgment was conclusive. But whether action taken under the claim of self-defense was in fact aggressive or defensive must ultimately be subject to investigation and adjudication if international law is ever to be enforced.”

And this court should allow individuals like Mephistopheles or his surviving relatives sue US and challenge its legal arguments. If the US does not want to cooperate in instituting such an international court, the same argument is valid against it. Mephistopheles or his spouse are free to declare themselves a country or whatever, send a drone to kill Obama, claiming that he is a terrorist planning to detonate an nuclear device in Teheran. They are free to bomb a wedding party in US arguing that they killed a terrorist and that they took all the precautions possible, but they still were entitled to do it in self-defence. If whatever US says goes, it is the same for Mephistopheles. Whatever Mephistopheles says goes.

About Bankovich and relevant to your post: “With due respect, while the legal arguments may look convincing, it is hard to understand why a State should be able to kill people abroad by dropping bombs and then escape responsibility for the violation of the most valuable human right—the right to life—under the pretence that it did not exercise jurisdiction.”, S. Trechsel. “A World Court for Human Rights?” 1 Nw. U. J. Int’l Hum. Rts. 3 (2003).

I’m hesitant to get too far into this as I have not read all of your and Ken’s excellent postings. But I suppose my biggest question about your posting is your assumption that scenario 1 is outside of any armed conflict. I’ve just completed work in an expert group for the Dutch government, which will soon publicize a set of recommendations on international law and terrorism that will include issues of the use of force. It was our group’s view that (contra the ICJ in the Wall case) armed attacks can be committed by non-state actors even without those attacks being attributed to the state, and that in such a case the victim state has the right of self-defense against those actors on the territory of other states. In that situation the entity committing the attack and its members (yes, I realize that can get tricky) are no more protected by human rights law than are those committing a state-to-state armed attack, i.e., we interpret human rights law to allow killing, if necessary and proportionate, of the members of the attacking force.

Now, the only difference in your scenario is that the attack has not yet taken place. But if we agree, as Kofi Annan’s High Level Group stated, that bona fide anticipatory (not preventive) self-defense is lawful, then human rights law would not seem to do anything more in the scenario where the attack is imminent.

You would have a point if the group were planning something that would not amount to an armed attack, but that’s a different question about the scale of a terrorist incident that would amount to an armed attack. And there is the question about whether the self-defense is really anticipatory if the attack is not imminent. These are all points in favor of Alston’s concerns. On the other hand, a state that has already been attacked has the right of self-defense to put an end to the attack, which, as you know, is not a tit-for-tat calculation. So again, it may not be so easy to simply assume no armed conflict.

This position is not a license to engage in targeted killings globally. The role of the state from whose territory the attacks (or imminent attacks) occur is absolutely critical, self-defense can be used in its territory (i.e., without its consent) only if it is completely unwilling or unable to do anything to stop the attackers.

Where there is no ongoing or imminent armed attack, self-defense drops out of the picture — although one might justify TKs based on the existence of a non-international armed conflict where the host state (on whose territory the NIAC is taking place) has consented to the involvement of the state carrying out the TKs and the TKs really are carried out as part of the NIAC. This seems to be the strongest basis for some of the US attacks in Afghanistan and Pakistan.

I agree entirely that IHL may be relevant in my scenario 1. What I tried to do, however, was to postulate it away, so that we could see what self-defense alone would be capable of doing if IHL for some reason wouldn’t apply. That’s because the essence of Ken’s (and Harold Koh’s) independent self-defense argument is that operates when IHL does not.

Now, as for the bigger question as to whether IHL would indeed apply in my scenario 1, if we don’t postulate it away – well, I think that the issue is certainly complicated enough that we can’t be sure that IHL would apply in every conceivable version of this scenario.

First, let me just agree on your appraisal of the law of self-defense, armed attack etc – even though, as you know, many international lawyers would disagree on some of these elements. But even if we accept that a terrorist attack on state A by a non-state actor operating from state B would qualify as an ‘armed attack’ for the purpose of Art. 51 of the Charter, and create for A an entitlement to self-defense, this would not immediately or necessarily create a state of ‘armed conflict.’

In an anticipatory situation, there would be no conflict until the hostilities actually commenced. Further, unless the non-state actor was actually acting on behalf of state B, there couldn’t be an IAC, at least not until state A actually responded by force – but even then the existence of an IAC would be debatable. A NIAC, on the other hand, would require protracted armed violence, and this is something that we simply might not have, if both the attack and the response were limited.

So, again, even though I am not at all disputing that IHL may be relevant, I certainly don’t think it (like self-defense) would cover ever conceivable scenario. And even if it did, that doesn’t mean that human rights law would necessarily be completely displaced by virtue of lex specialis or whatever. In particular, it might well be that human rights law would impose a don’t-kill-if-you-can-capture requirement, something that IHL simply does not do, whether in IACs or in NIACs (unless you buy into some of the ICRC’s statements in the recent DPH study).

Imagine the following two scenario’s.
(1) Llamazares travels to Pakistan on holiday and gets killed by a drone, because the operator mistakenly thinks he is bin Laden.
(2) In the second scenario U.S. asks Spain to deliver Llamazares and Spain refuses it. U.S. sends a drone and kills him in Madrid, during a wedding party where thirty other party-goers die.

Does the U.S. violate the human rights of Llamazares and/or of the party-goers, or can U.S. just kill anybody under article 51?

[…] legal? “Yes. I wouldn’t say beyond any doubt, but for practical purposes very nearly so. As I’ve argued before, there are three bodies of law (potentially) relevant for assessing the legality of a targeted […]

Marko Milanovic

Dr Marko Milanovic is associate professor at the University of Nottingham School of Law. He is co-editor of EJIL: Talk! and a member of the EJIL's Editorial Board, as well as Secretary-General and member of the Executive Board of the European Society of International Law.